Court improperly refused conspiracy jury instructions

Even though the circuit court correctly denied appellant’s motion to strike a charge of conspiracy to distribute drugs, her conspiracy conviction is reversed. The court should have given proffered instructions informing the jury about single buyer-seller relationships and under what circumstances such transactions could constitute a conspiracy.

Overview

Richard appeals her convictions of conspiracy to distribute a controlled substance and possession with intent to distribute a controlled substance. The trial court denied Richard’s motion to strike the conspiracy charge. Richard had argued that there can be no conspiracy in a single buyer-seller transaction. The trial court ruled there was evidence that Richard had conspired with Harris to provide drugs to Wade (an undercover agent) in exchange for an ownership interest in a car Wade was providing to Harris.

Richard proffered two jury instructions. The first stated that a single buyer-seller relationship, standing alone, does not constitute a conspiracy. The second would have informed the jury that “A single buyer-seller relationship may constitute a conspiracy only if: (1) the seller knows the buyer’s intended use; and (2) that by the sale, the seller, intends to further, promote and cooperate in the venture[.]”

The court declined to give either instruction. Richard appeals her convictions.

Relevant law

“The simple drug transaction rule acknowledges that, although a simple drug transaction involves at least two or more criminal agents, the transaction does not necessarily create a conspiracy. If the transaction is spontaneous, the criminal enterprise lacks the shared intent, preconcert, and connivance that the law of conspiracy is meant to deter, there is no conspiracy.

“However, a simple narcotics transaction can still give rise to a conspiracy. … If the participants agree and plan to commit the crime in advance of the transaction such that the transaction is not spontaneous and share the same criminal objective, they are guilty of conspiracy regardless of whether it is ever consummated.

“Put differently, though there is obviously at least an implicit agreement to buy or sell drugs in any simple drug transaction, if the agreement to make the exchange occurs at essentially the same time as the transaction itself, the transaction is sufficiently spontaneous to conclude that the participants did not share the same intent and engage in preconcert and connivance, there is no conspiracy. A simple drug transaction is marked by spontaneity, while the essence of conspiracy is an agreement at least somewhat in advance of the transaction.”

Motion to strike

“[D]irect evidence supported a finding that Richard and Harris had an explicit, pre-conceived plan to distribute methamphetamine. Richard knew of Harris’s intent to distribute the methamphetamine in exchange for the car. … She also cooperated in the venture and expected to share in the proceeds of the distribution by becoming a co-owner of the car until she could pay Harris back. …

“Prior to the meeting to make the trade, Richard and Harris developed a detailed plan that Richard would drive them to the pre-determined location, hold the methamphetamine on her person, and, if Harris got robbed, she would drive away but return later to pick him up.

“Additionally, prior to the meeting the two determined that if ‘Mike from Willis’ wanted more than three 8-balls for the car, Richard could contribute the $250 she had on her in cash. From these facts, a rational trier of fact could have found the elements of shared intent, preconcert, and connivance in a plan to distribute methamphetamine, thereby concluding that Richard and Harris conspired to distribute methamphetamine in exchange for a car.

“Accordingly, the circuit court did not err in denying Richard’s motion to strike.”

Jury instructions

“In a jury trial, because the jury, not the court, is the arbiter of the credibility of the evidence, if there is evidence that tends to sustain either the Commonwealth’s theory or the defense’s theory of the case, the circuit court must instruct the jury as to both theories ‘to guide a jury in their deliberations as to the law applicable to the case, depending upon how the jury decides the facts.’ …

“Richard proffered two instructions regarding the simple narcotics transaction rule in conspiracy liability. The first read, ‘A single buyer-seller relationship, standing alone, does not constitute a conspiracy.’ The second read:

“‘A single buyer-seller relationship may constitute a conspiracy only if:

“‘(1) the seller knows the buyer’s intended use; and

“‘(2) that by the sale, the seller, intends to further, promote and cooperate in the venture.’”

The proffered instructions accurately stated rules adopted by caselaw. “The question then is whether the simple drug transaction theory, viewed in the light most favorable to Richard, was supported by more than a mere scintilla of credible evidence.

“On appeal, the Commonwealth argues that there was not more than a scintilla of credible evidence to support the instruction because ‘there was a specific and detailed arrangement and agreement.’ However, that conclusion depends on the credibility of the witnesses and the weight given their testimony. …

“[I]f viewed in the light most favorable to the Commonwealth, is legally sufficient to establish Richard’s involvement in a criminal conspiracy. However, whether a properly instructed jury would view the facts in that light is an open question since they were not instructed that the nature of the transaction and the degree of Richard’s involvement in it might, though not necessarily would, make a difference in her criminal liability for conspiracy. Thus, the circuit court’s refusal to give the proffered instructions was error.”

Conclusion

“[W]e hold that from the evidence, viewed in the light most favorable to the Commonwealth, a rational trier of fact could have concluded that Richard and Harris conspired to distribute methamphetamine, and therefore we affirm the circuit court’s denial of the motion to strike.

“However, we also hold that viewing the evidence in the light most favorable to Richard, there was more than a scintilla of evidence to support the proffered instruction such that the jury should have been given the opportunity to determine if the evidence supported its application to the facts as weighed by … them.

“Accordingly, we reverse the judgment of the circuit court with respect to Richard’s conviction for conspiracy to distribute a controlled substance and remand for a new trial, if the Commonwealth be so advised.”

Richard v. Commonwealth, Record No. 1722-19-3, Dec. 8, 2020. CAV (Humphreys) from Floyd County Cir. Ct. (Long). Gary M. Bowman for appellant, Virginia B. Theisen for appellee. VLW 020-7-226, 12 pp. Published.